Estate of Pew

STURTEVANT, J.

This is an appeal by the executor from a decree of distribution.

In the decree appealed from the trial court ordered the bequest of $5,000 to Newton B. Knox be paid in full. The

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executor contends that there should have been deducted from said bequest the sum of $3,300 or thereabouts, the amount of a certain promissory note made by Newton B. Knox which evidenced loans theretofore made by John W. Pew, the husband of the testatrix.

In so far as any of its provisions are pertinent to the question before us the will provided as follows:

“I, Clara Slocomb Pew, of the City and County of San Francisco, State of California, being of sound mind and memory and not acting under duress, menace, fraud or undue influence of any person or persons whatsoever, do hereby make, publish and declare this my last will and testament in the manner following, that is to say:

“1. I hereby revoke all former wills made by me.

“2.

I hereby direct that all my just bills be paid.

“3. I hereby give and bequeath unto my nephew Newton B. Knox at present residing in London, England, the sum of Five thousand ($5000) dollars. . . .

“6. I hereby give and bequeath unto Booth Knox of Palo Alto, California, now attending Stanford University, the sum of Twenty-five hundred ($2500) dollars. ...”

The record discloses that the testatrix was possessed of properties exceeding $400,000. By the terms of her will the testatrix made personal bequests to over twenty individuals in sums varying from $1,000 to $10,000. To certain charities she bequeathed $1,000 to each. The residue she bequeathed one-half to her sister and one-fourth to each of two nephews. Between the years 1927 and 1930, Newton B. Knox borrowed from John W. Pew, the deceased husband of the testatrix, certain sums of money and as evidence thereof made and delivered to Mr. Pew promissory notes. On May 3, 1930, Mr. Pew died. In the settlement of his estate the notes were appraised as of no value. On May 29, 1930, the testatrix made her will. On September 15, 1931, Newton B. Knox made and delivered to the testatrix a note in the sum of $3,182.95 and the earlier notes were delivered up and canceled. No part of the principal or interest on the note hereinabove last mentioned has been paid. The legacy to Booth Knox mentioned in paragraph 6 of the will was paid in full by the executor. Newton B. Knox died on May 15, 1932. The testatrix died December 25, 1933. In applying for- a decree of distribution the executor asked the probate court to